The City of Saint John will have to pay damages in a class-action lawsuit from alleged victims of sex offender and former police officer Kenneth Estabrooks after its appeal was dismissed at the Supreme Court.
Estabrooks is alleged to have sexually assaulted multiple children in Saint John from 1953 to 1975.
Saint John had been seeking to reverse a New Brunswick Court of Appeal ruling in favour of Bobby Hayes and other alleged victims that said it could be found vicariously liable for abuse committed by Estabrooks during his time on the city’s police force, from 1953 to 1975.
The city was found liable after a trial in 2022 for the time from 1975 to 1983 while Estabrooks worked in the city works department, but not for his actions while a police officer. Court heard at trial that Estabrooks had been transferred out of the police department after admitting to having sexual encounters with two teenage boys.
Estabrooks was convicted in 1999 of indecent assault on four children, received a six-year prison sentence and died in 2005.
“The Supreme Court of Canada’s decision was a hugely important milestone in this long running case,” Hayes’ lawyer John McKiggan said Friday in a statement. “The court has vindicated Bobby Hayes’ battle to hold the City of Saint John accountable for the decades of Kenneth Estabrooks’ sexual abuse of children while he was a Saint John city police officer.”
The lawsuit from Hayes started in 2013, with Court of King’s Bench Justice William Grant ruling in 2022 after a trial that Saint John could be held liable starting in 1975, when Estabrooks moved to the works department, but not for the time he was a police officer. Grant had ruled that at the time, municipalities could not be held liable for police officers doing their jobs.
The Court of Appeal decision in September 2023 found that to be a “reversible error,” saying Estabrooks counted as a city employee. Saint John asked the Supreme Court in November to appeal, with all documents filed by March. On Thursday, the parties were informed that the city was denied leave to appeal with costs.
McKiggan said the Supreme Court’s decision means the ruling regarding liability for Estabrooks’ time as an officer “is now final.”
“All that remains now is to determine how much compensation the City is going to have to pay to the hundreds of sexual abuse survivors who were assaulted by Estabrooks during his time as a police officer,” he said. “Bobby Hayes started this journey more than 10 years ago and he has never wavered in his commitment on behalf of all the survivors who had their lives destroyed by Estabrooks predatory activities.”
Michael Brenton, who represented the city, declined a request for comment.
The Court of Appeal had referred a question regarding time limits back to Grant in December. The city had argued that a 2009 amendment to the province’s limitations law adding an exception for sexual offence cases didn’t apply because vicarious liability is not a sexual offence.
In April, Grant ruled that the wording was “not as restrictive” as the city argues, but he did find that the exception didn’t apply to cases that had already expired by the time the amendment came into force, meaning that claims would have to be assessed individually to see if that had occurred.
A cross-appeal from the city regarding the Workers’ Compensation Act as it pertains to Estabrooks’ time as a works employee had been referred back to the Court of Kings Bench as part of the September appeal decision.
In a statement, WorkSafeNB spokesperson Lynn Meahan-Carson said the agency was asked to determine whether the law would prevent the lawsuit from going forward and came to a decision April 10. The agency uses an employer-funded insurance model to provide care and support to injured workers, she said.
“This type of system, with few exemptions, prevents injured workers from taking legal action against their employers,” Meahan-Carson said. “We have submitted a legal opinion that this situation does not fit the criteria for an exemption.”
McKiggan said the decision means that class members who allege abuse by Estabrooks when he worked in the works department can make workers’ compensation claims, and that they “don’t have to wait for the class action to be concluded.”
By Andrew Bates, Local Journalism Initiative Reporter
